Charge to the Grand Jury , 33 Me. 589 ( 1851 )

Gentlemen of the Grand Jury : —

You may be called in the discharge of your official duties to investigate the circumstances, under which a fellow citizen has been killed, while alleged to have been assisting an officer in the discharge of his official duties. The occasion therefore is not unsuitable, if it does not require, that the principles should be stated, by which men should be governed, when required by the laws of the country, in which they dwell, to do an act or to refrain from doing it.

Obedience to established law is the principle, upon which alone our civil and religious freedom can be maintained.

Much has recently been spoken and written respecting the duty of obedience to human laws, and there has been much of vague statement and of involved and of inconclusive argument, affording no very definite or clear rules easy of comprehension by a whole people, and fitted for application to the common concerns of life. And yet it is believed, that men unlearned in the law and unqualified for legal investigations or for intricate and difficult processes of reasoning, were not intended to he left without rules for their government, which could be readily comprehended and applied.

The offence alluded to is reported to have been committed while resisting the execution of a judgment rendered by a judicial tribunal.

When a judgment is obtained by one person against another by a regular and legal course of judicial proceedings, and the person, against whom it has been obtained, considers it to have been illegally or unjustly obtained, lie cannot be permitted to offer the least resistance to the execution of it. If the judgment has been obtained against him by false testimony, or by any accident, negligence, or oversight on his own part, it is not the less binding and operative upon him, until he obtains relief from it in the manner prescribed by law ; and while it remains in force the least resistance to its execution is unauthorised and illegal, and is liable to be punished in the same manner, that it would be, if the judgment had been rendered without the occurrence of any accident, neglect, or false testimony.

If this were not the rule of law and of duty, every man would be at liberty to resist the regular and constituted administration and execution of the laws ; to do that which seemed right in his own eyes; and there would be no security for person or property without resort to an armed force. Our present form of government could exist no longer for any beneficial purpose.

A person may believe, that an act of the legislature is unauthorised by the constitution of the State or of the United States, and the inquiry is presented, whether he should obey it. It will be his first duty to ascertain, if possible, whether there is good reason to believe that his opinion is a correct one. After obtaining the best information within his power, should he continue to be of the same opinion, he may assume the responsibility, disregard the enactment, and abide the consequences. But he must not offer the least forcible resistance to the execution of the law esteemed to be unconstitutional, even when it acts directly upon his own person or property, nor incite or encourage others to do so. He must quietly permit it to operate upon his person or property in the same manner, as he should do, if there were no doubt, that it was a constitutional and valid enactment, and submit to its effect, until by a regular course of legal proceedings he can obtain the decision of a judicial tribunal provided for that purpose, and thus, if the act be decided to be unconstitutional, obtain redress for any injury to his person, property, or rights, occasioned by the enforcement of the unconstitutional enactment.

He may not under any circumstances resort to force himself or incite others to do so, to prevent the execution of the law by a regular judgment or otherwise by officers appointed for that purpose, although it may finally prove to have been unconstitutional and void.

To allow him to do so would be to permit every man to be the final judge of the constitutionality and validity of Ihe laws, to disturb the public peace by resisting them, and to introduce disorder, violence, and the shedding of blood, upon the judgment and according to the will and pleasure of every man in the community.

The rule of duty is plain. A man may disregard a law, which he believes to be a violation of the.constitution and abide the consequences upon his person or property ; but he must not offer the least resistance to the regular execution of such a law or incite others to do so, however severely it may act upon his person, property, or rights. He must seek for redress through a regular course of legal proceedings.

A person may believe, that an act of a legislative body legally passed in accordance with the provisions of the constitution, by which it is governed, is contrary to the laws of God. The inquiry is then presented respecting his duty to obey it.

His first duty is to ascertain, whether the act is clearly and directly opposed to the divine law. When this has been ascertained clearlyt as when for example such an act should require him to hate and to kill his enemy, while the divine law declares, thou shalt love thine enemies and shalt not kill, the human law ' is to be disobeyed, and the divine law obeyed. The person is not at liberty to obey the human law. When no commandment or precept in the revealed will of God can be found, which if written under the human law would be clearly opposed to it, it is the duty of the citizen to obey the human law.*

It may be, as it has often been, contended that, although no precept of the divine law clearly opposed to the human law can be found, a person may ascertain certain rules and principles resulting from the whole revealed will of God, and may conclude, that these rules and principles are opposed to a law of the country, and that he is therefore authorized and required to disobey it.

The reasoning, on which this position is based, is unsound ; and the position itself is unauthorized by the divine commandments and precepts.

New persons could be found, who would agree upon all the rules and principles resulting from the whole of the revealed will of God. Such rules and principles would be different when presented by those, who were more or less highly endowed with intellectual power, and by those whose minds were more or less highly cultivated and trained to profound, elaborate, and intricate courses of investigation and deduction ; and by those who were more or less under the guidance of a correct moral sense and religious influence, and who were more or less perfectly instructed in the divine precepts. These rules and principles might be as numerous and various as the degrees of mental power, of mental cultivation, and of correct moral and religious instruction.

It could not have been the intention of the divine Instructer to leave men in such a condition, that when called upon to obey the laws of their country, there should be found no certain rule of conduct prescribed by Him, applicable alike to all persons, and so clearly made known that all persons of common capacity, who could read, or comprehend what was read by others, could understand and act upon it. It must have been His intention to communicate a common and plain rule for all classes of persons, or there would be no common and plain rule of duty.

When therefore a person can find no direct and palpable conflict between a divine and human law, he is not at liberty to enter upon an elaborate course of investigation and inquiry, whether a rule cannot be deduced by his scriptural studies and mental operations, as resulting from the whole of the divine precepts, which rule will be in conflict with human laws, and to act upon this rule of his own making.

Rules and principles thus deduced are not of God. They are the workmanship of man. To pursue such a course is to set up a rule often elaborated from his own pride of intellect and of cultivation, or from self-will, or ignorance, or fanaticism, in place of the divine will, and to make it the foundation of a wilful opposition to the regularly established laws of the country.

It is not intended to deny that such rules may be useful, and may be used to determine the moral duties of man, when those duties are not plainly prescribed by divine or human laws.

When one is required and obliged to disobey a human law, because it is opposed to the plain letter and declaration of the divine law, is he therefore authorized to oppose by force the execution of the human law ? Certainly not. It is his duty to disobey calmly and quietly, without the least attempt to resist, or otherwise to oppose the execution of the human law by the officers appointed to execute' it. He is simply to disobey it, and to abide the consequences of his disobedience, whatever they may be, without any attempt by force or violence or by inciting others to use it, to prevent the full effect of the penalty, imposed by the human law for its violation, being inflicted upon his person or property.

The duty is plainly inculcated in the scriptures not to oppose by force or violence the laws of an existing government irrespective of their character. It is one’s duty to follow the example of Daniel and refuse to worship Darius, and to follow his example also by submitting to go into the den of lions without any attempt by force or violence to prevent the execution of the law upon himself.

This is not a fit occasion to consider under what circumstances a person may by the divine law be permitted to overthrow an existing government by revolution, and these remarks are not applicable to such a question. Nor are they intended to question the right of every citizen to discuss with entire freedom the character of existing laws, and to show, that they permit or encourage moral misconduct, and that they are otherwise unwise or inexpedient, and that they ought to be altered or repealed.

Some persons attempt to justify their disobedience of human laws by asserting, that they cannot in conscience obey them.

The present occasion is not an appropriate one to consider whether conscience may not be the best guide for the determination of man’s moral duties, where the revealed will of God respecting them is not and cannot be known.

It may be safely asserted, that conscience is not to be relied upon as affording a correct or safe rule of duty for a people, to whom the will of God has been made known.

The revealed will of God constitutes the rule of right and wrong. There can be nothing right, which is opposed to it; nothing wrong, which is in accordance with it.

Man’s conscience during all his past history has been frequently and greatly opposed to it.

Men’s consciences differ according as their moral and religious and mental instruction has been more or less correct and thorough.-

The divine will, as plainly revealed and made known in the scriptures, has, in the manner already stated, determined man’s duty respecting obedience and disobedience of human laws. It is the only perfect rule of duty. No man can be assured, that his own conscience does afford a perfect rule. He, that would substitute for the divine will the conscience of man, or his own conscience, would in effect cast away the Christian religion as a rule of duty and unite himself with those who may have no better or safer guide than conscience, often blunted by the indulgence of pride, passion, self-will, and self-interest, darkened by erroneous and prevailing opinions and instructions, and blinded by superstition and fanaticism. He, that would do this, knoweth not what manner of spirit he is of, or he would not attempt to thrust aside the revealed will of God as a rule of duty and to set up his own conscience in its place. It is but an exhibition of self-conceit and of revolting presumption for any man favored with a revelation of the divine will to present his own conscience as affording a more correct and infallible rule of duty than the revealed will of God ; or to question the sufficiency of the divine precepts and to attempt to supply their defects by a voice within him.

It is not intended to deny that the conscience of man was given to aid him in the discharge of his moral duties ; or that it should be used for that purpose. It should however occupy its proper position of a monitor to man, to walk in the right ways of the Lord, and it should not exalt itself to the position of a revelator of the divine will. When it attempts to do tisis, it displaces that revealed will, and usually becomes the revelator of the self-will and perversity of man.

The insertion of the following article, which was first published in Livingston’s Biographical Sketches of Eminent American Lawyers, now living, and with which the Reporter is permitted to enrich this volume, will, it is believed, be highly gratifying to the legal profession of Maine, and to the public.